In yesterday's post I discussed the effect of Section 776.041 of Florida law which codifies the common law rule that to claim self-defense a criminal defendant must not have been the aggressor. Under this statute George Zimmerman's guilt or innocence is likely to turn on whether the jury finds that he "initially provoked" the incident in which he shot Trayvon Martin to death. If he did provoke the attack and did not subsequently try to escape or withdraw from the confrontation, the "Stand Your Ground" law does not apply and Zimmerman will not be permitted to claim that he acted in self-defense. In this post I examine two recent Florida cases interpreting 776.041 and I cite some older Florida cases applying the common law rule that a wrongdoer may not claim that he acted in self-defense.

In Vila v. State 74 So.3d 1110 (5th Dist. 2011), the District Court of Appeal affirmed the defendant's conviction for battery. The Court stated that "The victim testified that Vila opened the door to his truck, reached inside, pulled him out, threw him to the ground, and began hitting him with a bicycle tire." The jury convicted the defendant of "burglary of a conveyance," and so the Court of Appeal concluded that the jury believed the victim's testimony on this point. The Court of Appeal found that the defendant's conduct of pulling the victim out of the car "initially provoked" the incident, and that this meant that the defendant was not entitled to claim "self-defense" to the charge of battery. The court concluded:

The jury's unchallenged verdict on the burglary charge causes us to conclude that Vila was the initial aggressor and surrendered his right to self-defense.

In Johnson v. State, 65 So.3d 1147 (3rd Dist. 2011) the District Court of Appeal affirmed the defendant's conviction for attempted second degree murder. There was evidence that there had been an earlier altercation that day between the two men and that the defendant had attempted to run over the victim with his motorcycle. When the victim went to the store two or three hours later, the defendant was there. The defendant testified that the victim got out of his car and rushed towards him attacking him. The defendant said that he shot the victim because he was losing consciousness and was afraid the victim would kill him. The victim testified that when they arrived at the store the defendant banged on the back window of the victim's car, that he (the victim) got out of the car, the defendant approached the victim, and the two "got locked up" and "tussled a bit" when the defendant shot the victim.

The Court of Appeal found that victim's testimony was sufficient to invoke Section 776.041 and instruct the jury that the defendant may not claim self-defense if he "initially provoked" the attack. The court was careful to state that the acts constituting "initial provocation" must be "contemporaneous" with the actions of the victim.

An older Florida case which was decided before 776.041 was enacted involved a "pursuit" which is perhaps analogous to Zimmerman's actions against Martin. In Mixon v. State 59 So.2d 38 (Fla. 1952), the Florida Supreme Court affirmed the defendant's conviction for second degree murder where there was evidence that the defendant armed himself, pursued the victim, and shot him. The court stated:

The appellant and the man he later admitted killing had an altercation while the appellant was sitting in his jeep, the other man standing at the side of the vehicle. The appellant drove to his home nearby where he procured a revolver, while his adversary continued along the highway, afoot. The appellant, accompanied by his wife and their young daughter, then drove in the same direction until he overtook his former antagonist when both stopped. … Were we convinced that the final encounter was of such nature that the issue of self defense was properly introduced and the appellant's blame should therefore be judged by the amount of force he used in resisting his victim, we think the testimony would have been admissible. But the facts believed by the jury point too strongly to a deliberate pursuit by appellant, after the original difficulty had ended and the parties had separated. The law is quite clear that one may not provoke a difficulty and having done so act under the necessity produced by the difficulty, then kill his adversary and justify the homicide under the plea of self defense. (emphasis supplied)

The West Key Digest system brings up a number of older Florida cases involving the rule that a "wrongdoer" may not claim self-defense. In several of these cases the courts stated that the defendant must be "free from fault" in order to claim self-defense. The quoted language in each case is from the key digest headnote, not the case itself:

Matthews v. State (1937) ("In murder prosecution, defendant could not invoke defense that deceased was  armed with a pistol and that defendant shot him in self-defense, where evidence showed that defendant was aggressor in bringing on difficulty and was not free from fault.")

Bowman v. State (1934) ("Killing is not justifiable or excusable if necessitated by accused's acting wrongfully or without being reasonably free from fault in provoking difficulty.")

Gaff v. State (1931) ("Accused, to successfully excuse homicide on ground of self-defense, must have been free from fault, or receded after having been aggressor.")

Scholl v. State (1927) ("One interposing self-defense in prosecution for homicide must not have wrongfully occasioned necessity of killing.")

Landrum v. State (Fla. 1920) ("On a trial for murder, it is proper to charge that one cannot acquit himself of liability for the consequences of a personal difficulty on the ground of self-defense, unless he is reasonably free from fault in entering thereupon.")

Stinson v. State (1918) ("Defendant cannot avail himself of defense of self-defense when he himself brought on the situation under the compulsion of which he strikes the blow or fires the shot which he claims was justified.")

Barton v. State (1916) ("If one wrongfully occasions necessity for self-defense, though he may have reasonable ground to apprehend a felony, or serious personal injury, and there is imminent danger thereof, he cannot justify a killing on the ground of self-defense.")

Barnhill v. State (1908) ("One who seeks and brings on an affray cannot plead self-defense.")

Kennard v. State (1900) ("The aggressor in a difficulty, one not reasonably free from fault, cannot justify homicide committed in such difficulty on the ground of self-defense.")

Lovett v. State (1892) ("On a trial for murder, it is proper to charge that one cannot acquit himself of liability for the consequences of a personal difficulty on the ground of self-defense, unless he is reasonably free from fault in entering thereupon.")

In the Zimmerman case the prosecution will make the following argument. Based upon his own statements to the police dispatcher Zimmerman profiled Martin and followed him in his car, and then exited his car and followed him armed with a gun. Zimmerman suspected Martin of committing a crime and was intent that Martin should not get away. Martin was completely innocent of any crime; he was simply walking home from a trip  to the store. Zimmerman was unjustified in pursuing Martin and under the circumstances his conduct was threatening. This, the prosecution will argue, was sufficient to "initially provoke" the ensuing struggle, no matter who struck the first blow. There is no credible evidence that Zimmerman either tried to escape from Martin or that he withdrew and clearly indicated his intent to withdraw from the altercation. Accordingly, under 776.014, Zimmerman may not claim that he acted in self-defense.

Zimmerman, of course, will seek to introduce evidence rebutting these findings.

The "Stand Your Ground" law explicitly provides that a person "has no duty to retreat" if he or she is "not engaged in an unlawful activity." However, another statute entitled "Use of Force by Aggressor" provides that if a person initially provokes the use of force then that person may not claim self-defense unless he or she has "exhausted every reasonable means to escape." I suspect that prosecutors will rely upon this second law in their prosecution of George Zimmerman for the shooting death of Trayvon Martin.

Section 776.013(3), the "Stand Your Ground" law (which was discussed in this previous post) will constitute Zimmerman's principal defense. This statute says that a person "has no duty to retreat" in the face of an attack. This law states:

A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

However, another Florida law overrides 776.013. This other law is a later section of the same chapter of the Florida laws, Section 776.041 entitled "Use of Force by Aggressor." This section of the law explicitly states that the rules of self-defense that are "described in the preceding sections of this chapter" do not apply if the defendant was attempting to commit a forcible felony OR if the defendant initially provoked the attack against him. Section 776.041 provides:

Use of force by aggressor.—The justification described in the preceding sections of this chapter is not available to a person who:

(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or

(2) Initially provokes the use of force against himself or herself, unless:

(a) Such force is so great that the person reasonably believes that he or she is in imminent danger of death or great bodily harm and that he or she has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or

(b) In good faith, the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.

This statute allows an aggressor to claim self-defense only if the person "has exhausted every reasonable means to escape" or if "the person withdraws from physical contact with the assailant and indicates clearly to the assailant that he or she desires to withdraw and terminate the use of force."

Under Section 776.041 the prosecution need not prove that Zimmerman swung the first blow when they finally came together. It need only prove that Zimmerman "initially provoked" the attack. As noted in yesterday's post, in their probable cause affidavit the prosecutor's investigators  repeatedly emphasized Zimmerman's state of mind – his unfounded belief that Martin was committing a crime. The prosecution will attempt to prove that because of his irrational suspicion and against the advice of the police dispatcher Zimmerman unreasonably followed Martin armed with a gun, thus provoking the confrontation that led to Martin's death. If Martin had confronted Zimmerman when they first encountered each other Zimmerman would have had no duty to retreat. However, if the jury finds that  Zimmerman provoked the attack, the jury may not find that Zimmerman acted in self-defense unless they also find that Zimmerman either tried to escape from Martin or that he withdrew from Martin and clearly indicated his desire to withdraw.

Talking Points Memo has posted the affidavit filed by the special prosecutor's office explaining why there was probable cause to charge Zimmerman with second degree murder in the shooting death of Trayvon Martin.

The investigators – T.C. O'Steen and Dale Gilbreath – state that they "have taken sworn statements from witnesses, spoken with law enforcement officers who have provided sworn testimony in reports, reviewed other reports, recorded statements, phone records, recorded calls to police, photographs, videos, and other documents."

Most of the facts that O'Steen and Gilbreath recite are already familiar to persons following the case. Zimmerman saw Martin returning to the housing complex where Zimmerman lived and Martin was visiting, Zimmerman followed Martin, an altercation ensued, and Zimmerman shot Martin. Several portions of the affidavit jumped out at me, however, all contrasting Zimmerman's suspicious state of mind with Martin's innocence. First, the investigators state that Zimmerman "profiled" Martin:

Martin then walked back to and entered the gated community and was on his way back to the townhouse where he was living when he was profiled by George Zimmerman. Martin was unarmed and was not committing a crime.

Second, they say that Zimmerman "assumed Martin was a criminal" and "felt Martin did not belong":

Zimmerman who also lived in the gated community, and was driving his vehicle observed martin and assumed Martin was a criminal. Zimmerman felt Martin did not belong in the gated community and called the police.

Third, the investigators relate statements that Zimmerman made during his 911 call to the police that suggest that Zimmerman suspected Martin of being a criminal:

Zimmerman perceived that Martin was acting suspicious. … During the recorded call Zimmerman made reference to people he felt had committed and gotten away with break-ins in his neighborhood. Later while talking about martin, Zimmerman stated "these assholes, they always get away" and also said "these fucking punks".

Fourth, Zimmerman followed Martin, disregarding the instructions of the police dispatcher:

Zimmerman got out of his vehicle and followed Martin. When the police dispatcher realized Zimmerman was pursuing Martin, he instructed Zimmerman not to do that and that the responding officer would meet him. Zimmerman disregarded the police dispatcher and continued to follow Martin who was trying to return to his home.

In short, the investigators repeatedly emphasized both Zimmerman's suspicious state of mind and Martin's innocence.

In concluding the affidavit the investigators state that the facts mentioned in the affidavit "are not a complete recitation of all the pertinent facts and evidence" but were only presented to demonstate probable cause to charge Zimmerman with second degree murder.

In her news conference announcing that George Zimmerman was being charged with second degree murder in the death of Trayvon Martin, Florida Special Prosecutor Angela Corey mentioned several times that self-defense is an "affirmative defense" under Florida law. She also said that "Stand Your Ground" is "a tough affirmative defense to overcome." It will be "tough" for the prosecution because although Zimmerman has to introduce some evidence that he acted in self-defense, that doesn't mean that he has to convince the jury that he acted in self-defense. All he has to do is to create a "reasonable doubt" as to whether he acted in self-defense. A proposed amendment to the Florida Jury Instructions makes that perfectly clear.

Six years ago in Murray v. State, 937 So.2d 277, 279 (Fla. 4th Dist. 2006), the Fourth District Court of Appeal in Florida ruled that once a defendant in a criminal case has introduced proof that he acted in self-defense the jury is entitled to consider the defense, and the jury may not convict the defendant unless it finds beyond a reasonable that he did not act in self-defense. The Fourth District Court of Appeal stated:

But, with these additional facts, did he also incur a “burden of proof” identical to the State's? That is, did he have to prove the additional facts for self-defense beyond a reasonable doubt?  Or was he instead bound by some lesser standard-say, the greater weight of the evidence? Indeed, how about something even less onerous than that? Was he merely obligated to lay the additional facts before the jury, without any burden as to the strength of their probative value – other than they might be true? The answer is this. No, he did not have to prove self-defense beyond a reasonable doubt. He did not have to prove even that his additional facts were more likely true than not. The real nature of his burden concerning his defense of justification is that his evidence of additional facts need merely leave the jury with a reasonable doubt about whether he was justified in using deadly force. Hence, if he wanted his self-defense to be considered, it was necessary to present evidence that his justification might be true. It would then be up to the jury to decide whether his evidence produced a reasonable doubt about his claim of self-defense.

Last year the Fifth District Court of Appeal quoted this language from Murray and followed the same rule in the case of Montijo v. State, 61 So.3d 424 (Fla. 5th Dist, 2011). In Montijo the trial judge had instructed the jury that the defendant had the burden of proving that he acted in self-defense "beyond a reasonable doubt." Montijo's attorney did not object to the jury instruction, but the appellate court found that the trial judge had committed a "fundamental error" by giving that instruction and ordered a new trial for the defendant. The Fifth District Court of Appeal stated:

The inclusion of the phrase “beyond a reasonable doubt” in the jury instruction placed the burden upon Montijo to prove self-defense, depriving him of a fair trial and rising to the level of fundamental error. Accordingly, we reverse.

Seminole County, where Trayvon Martin was killed, is in the is in the Fifth Appellate District, so the rule in Montijo is controlling unless and until the law is changed.

Florida Standard Jury Instructions online are in accord with the courts' rulings in Murray and Montijo. Instruction 3.6(f) states:

If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, you should find the defendant not guilty. However, if from the evidence you are convinced that the defendant was not justified in the use of deadly force, you should find [him] [her] guilty if all the elements of the charge have been proved.

On April 1, 2012, the Florida Bar News published proposed amendments to the Standard Jury Instructions. The proposed amendment to Instruction 3.6(f) would strengthen this language to clarify that the jury may convict the defendant only if it finds beyond a reasonable doubt that the defendant did not act in self-defense. The proposed amendment adds the underlined phrase to the charge to the jury:

If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force, you should find the defendant not guilty. However, if from the evidence you are convinced beyond a reasonable doubt that the defendant was not justified in the use of deadly force, you should find [him] [her] guilty if all the elements of the charge have been proved.

The bottom line is that Zimmerman cannot be convicted of murder or manslaughter unless the evidence shows beyond a reasonable doubt that he did not act in self-defense.

George Zimmerman has been charged with second degree murder, which carries a possible penalty of life in prison. A possible lesser charge is manslaughter, for which he could be sentenced to 15 years imprisonment. This post sets forth the relevant Florida statutes on homocide.

Jeff Weiner and Rene Stutzman of the Orlando Sentinel report in George Zimmerman jailed on second-degree murder in Trayvon Martin shooting on the charges that special prosecutor Angela Corey has brought against Zimmerman.

The Florida Murder statute is contained in Section 782.04. First degree murder (Section 782(1)(a)) requires proof of "premeditated design" and is a capital offense. Second degree murder, in contrast, requires proof of "imminently dangerous" conduct "evincing a depraved mind." Second degree murder is defined in Section 782.04(2), which provides:

The unlawful killing of a human being, when perpetrated by any act imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual, is murder in the second degree and constitutes a felony of the first degree, punishable by imprisonment for a term of years not exceeding life ….

Zimmerman could have been charged with manslaughter, which is defined in Section 782.07(1). That section of the law provides:

The killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder, according to the provisions of this chapter, is manslaughter, a felony of the second degree ….

According to Section 775.082, the maximum penalty for a felony of the second degree is 15 years.

I don't wish to comment specifically on the killing of Trayvon Martin until the investigation has been completed.  It now appears that this matter has been turned over to capable state and federal investigators.  Once all the facts are established there will be time to express opinions about that specific case.  However, the state statute that local police relied upon in refusing to make an arrest should be examined.  The law is deeply flawed and should be repealed.

The statute that Sanford, Florida, police invoked as justification for the killing of Trayvon Martin was enacted by the Florida legislature in 2005.  This NRA-sponsored law permits people to "shoot first" if they are afraid of someone in the streets.  At the time the opponents of the law warned that it would provoke more violence.  See Katie Sanders, Tampa Bay Times, Democrats warned about 'stand your ground' in 2005.  They were right.  Since the enactment of the law justifications for these kinds of killings are up nearly three-fold in Florida.  See CBS Miami, Deaths Nearly Triple Since “Stand Your Ground” Enacted.  Now congressional lawmakers want to extend this law to the entire country.  Bad idea.  We don't need a law that excuses "human hunting."

Here is the Florida law on self-defense. I have included both Section 1 and Section 3 here.  Section 1 deals with self-defense in the home.  Section 3 deals with self-defense anywhere else.  The problem is with Section 3:

JUSTIFIABLE USE OF FORCE

776.013 Home protection;  use of deadly force; presumption of fear of death or great bodily  harm.— (1) A person is presumed to have  held a reasonable fear of imminent peril of death or great bodily harm to  himself or herself or another when using defensive force that is intended or  likely to cause death or great bodily harm to another if:      (a) The person against whom the  defensive force was used was in the process of unlawfully and forcefully  entering, or had unlawfully and forcibly entered, a dwelling, residence, or  occupied vehicle, or if that person had removed or was attempting to remove  another against that person’s will from the dwelling, residence, or occupied  vehicle; and      (b) The person who uses defensive  force knew or had reason to believe that an unlawful and forcible entry or  unlawful and forcible act was occurring or had occurred. … (3) A person who is not engaged in  an unlawful activity and who is attacked in any other place where he or she has  a right to be has no duty to retreat and has the right to stand his or her  ground and meet force with force, including deadly force if he or she reasonably  believes it is necessary to do so to prevent death or great bodily harm to  himself or herself or another or to prevent the commission of a forcible  felony.

Section 1 of the law makes sense.  People have the right to defend their homes and vehicles from being invaded.  Furthermore, the terms that appear in Section 1 are carefully defined in Section 2 and Section 4 of the law which I have not included. There is not much vagueness or ambiguity about the provisions that justify self-defense in the home.

But Section 3 is another story.  Notice how broadly Section 3 of the law is written.  It applies to any person "who is not engaged in an unlawful activity."  It applies to "any other place where he or she has a right to be."  There is "no duty to retreat."  The person "has the right to stand his or her ground."

At first blush, this sounds wonderful.  The law seeks to protect our right to individual liberty – to go where we want to go and to do what we want to do so long as we are not breaking the law.

But this is not the usual kind of criminal law.  Every other criminal law that I am aware of is composed of neutral terms that carefully and dispassionately describe specific conduct and states of mind that constitute criminal behavior. Other criminal laws do not "make a statement."  This one does. This statute is not so much a criminal law as it is political manifesto or a moral imperative. It is an indorsement of a particular "image" or "role" of the individual as a heroic figure.

What does it mean to "stand your ground" in daily life?  In the context of warfare, the term is clear. If we are ordered to "stand our ground" then we will hold our position like Jackson at Bull Run ("There is Jackson standing like a stone wall!") or  Prentiss at Shiloh ("Hold the sunken road at all costs!").

This is not really a criminal law. It is rather an attempt to celebrate a particular conception of "honor."  It does not carefully and dispassionately define its terms. Instead, it invokes memories and emotions; it reminds us of the sacrifices of our ancestors; it seeks to glorify violence and, in particular, the use of guns in the defense of justice. The key language contained in the statute – STAND YOUR GROUND – would be a terrific title for a war movie or a western, but it makes lousy law.

We don't know yet what really happened between Trayvon Martin and George Zimmerman.  Even if we did, though, this law is so vague that it makes it difficult to prosecute killings in the street.

The statute could be interpreted to permit me to patrol the public streets at night, to follow someone, and to speak to him. That is all lawful behavior. I would be in a place where I have a right to be and I would not be breaking the law. In fact, both of us would be in a place where we have a right to be, and neither of us would be breaking the law. If the other person is armed, or if I reasonably mistake a bag of skittles or a set of keys for a weapon I might reasonably feel threatened. And I could kill him. Or he could kill me. And neither one of us (if either survives) could be prosecuted.

The "stand your ground" law coupled with "concealed carry" is a prescription for blood in the streets. Police and prosecutors oppose the law – but it is popular with criminal defendants. See Alexia Campbell, Sun-Sentinal, More accused hope to use 'Stand Your Ground' law to gain freedom.

The persons responsible for the enactment of this statute like Florida lawmaker Dennis Baxley (who co-sponsored the measure) and former Florida Governor Jeb Bush (who signed it into law) now claim that the law does not apply in the Trayvon Martin case – that it was never intended to justify a killing under those circumstances.  See Jeff Glor, CBS Evening News, Fla. "Stand Your Ground" author may seek changes; Washington Post: Former Fla. Gov. Jeb Bush: Self-defense law he signed doesn’t cover Trayvon Martin’s death.

That may be true. Too bad they didn't think of that before they enacted this hopelessly vague "honor statute" into law.

The most serious problems with ambiguous laws such as this are the risk that the law will not be fairly enforced and the risk that the public will not perceive that the law is being fairly enforced. Laws like this make it easy to "selectively enforce" the law. Racial and ethnic minority communities are rendered completely at the mercy of local police and prosecutors. It is because of that risk of selective enforcement that outside investigators were brought into this case. But that is not a sufficient solution. It simply isn't feasible to monitor the decisions of police and prosecutors in every state and every local community where "stand your ground" is now the law. Laws like this challenge our faith in the rule of law. Repeal it.

For additional commentary, see Christian Science Monitor, Professor: Florida 'Stand Your Ground' law vague (featuring Columbia Law Professor Jeffrey Fagan); New York Times Opinion Pages, Killing, With the Law on Your Side (featuring commentary from seven contributors).

Wilson Huhn teaches Constitutional Law at The University of Akron School of Law.

Reports from the Pew Research Center and the National Center for Children in Poverty make for depressing reading.  The statistics regarding poverty and crime are astonishing and a shameful reflection on our society. In 2009 the Pew Center issued a report 1 in 31: The Long Reach of American Corrections.  The title of the report refers to the fact that at any given time over three percent of Americans are either in jail, on probation, or on parole. At the time this report was issued, approximately 2.3 million persons were incarcerated in the United States.  This comprises .7% of the adult population.  This is the highest incarceration rate in the world.  Russia is second at .58% of the adult population, and Ruanda third at .56%. England’s incarceration rate is .15%, less than one-fourth ours.  America has less than 5% of the world's population, but nearly one-fourth of the world's prisoners.

From a purely economic perspective this is unacceptable.  According to Pew on the average it costs $29,000 annually to keep a person in jail.  And that does not factor in the opportunity costs of incarceration; the lost productivity, lost economic consumption, and lost tax revenues that result from removing an individual from the economy.  I am not suggesting that we would be better off economically if we were to suddenly release all criminals from custody.  I am simply stating the obvious fact that we are failing to prepare and train people to perform useful roles in our soceity and that this creates a tremendous burden on the rest of us.  Given the opportunity, almost everybody would choose to earn a legitimate livelihood, raise a family, and enjoy a normal life.  In a global economy societies that do not provide those kinds of opportunities to all of its members will not remain competitive for very long.  Nor should they.

What are the root causes of the high crime rates in the United States?  And what can we do about it?

The principal problem is poverty.  The Federal Poverty Level is $18,730 for a family of three.  In its report Basic Facts About Low-Income Children, 2010, the National Center for Children in Poverty informs us that more than 20% of American children are in families earning less than the federal poverty level, and another 23% live in "low-income" families:

Children represent 24 percent of the population. Yet, they comprise 34 percent  of all people in poverty. Among all children  under 18, 44 percent live in low-income families and approximately one in every  five (21 percent) live in poor families.

Children under the age of six are even more at risk.  Forty-eight percent of young children live in low-income families, 24% below the poverty level.

Try supporting a family and raising a child on $18,000 per year.

There are myriad problems associated with poverty that feed upon each other.  Homelessness.  Insufficient health care.  Inadequate schools.  Lack of job opportunity.  Drug Addiction.  Crime.  And incarceration.

We have to break these cycles.  It is not merely a matter of individual will.  It is a matter of societal will.

Crime rates have dropped dramatically over the last two decades.

All citations are to tables appended to FBI Crime in the United States.

In 1991, there were 24,703 murders and nonnegligent manslaughters – a homocide rate of 9.8 per 100,000 inhabitants.  In 2010, there were only 14,748 homocides, a rate of 4.8 per 100,000 – less than half the rate in 1991.  (Table 1)

Even though the U.S. population has increased, the number of violent crimes and property crimes has declined by 13% since 2001.   The rate of such crimes has declined by 20% since 2001.  (Table 1A)

Crime rates in rural areas are, for most types of offenses, less than half the crime rate in cities, with two exceptions.  The incidence of rape and robbery in rural areas is about 80% of what it is in urban areas.  (Table 2)

The overall crime rate is highest in the South, except for the crimes of rape (where the Midwest and West have the highest incidence) and auto theft (where the West takes the dishonors).  (Table 3)

Maine boasts the lowest level of violent crime (122 per 100,000), and the worst states for violent crime are Nevada (661), Alaska (639), and Tennessee (613).  The District of Columbia leads all jurisdictions in this statistic(1330 per 100,000 – ten times the level of violent crime in Maine).  (Table 4)

When and where do crimes of theft occur?  About half of all robberies occur in the streets; there are twice as many burglaries during the day as during the night; purse-snatching and theft from coin-operated machines are declining sharply, while shoplifting and bicycle theft have remained fairly steady.  (Table 7)

Louisiana sentences a small-time marijuana dealer to life in prison.

Ramon Antonio Vargas of the New Orleans Times-Picayune reports Fourth marijuana conviction gets Slidell man life in prison.  The offender, Cornell Hood II, was caught with about two pounds of pot in his house while on probation for third offense.  Judge Raymond S. Childress sentenced him to life in prison.

I am committed to the rule of law.  Unlike Ron Paul (GOP debate: Ron Paul makes case for heroin legalization) I do not believe that people have a constitutional right to ingest addictive and harmful substances.  And I hate drugs.  I hate them. 

But as a taxpayer and a citizen I am opposed to sentencing nonviolent offenders – even repeat offenders – to long prison terms.  First, it is enormously expensive.  The Pew Center on the States has conducted numerous studies on the Fiscal Impact of incarcerating large numbers of nonviolent offenders, including its March 2009 national report One in 31 - referring to the fact that nearly 3% of Americans are in the criminal justice system.  Lisa Lambert of Reuters, in her article Cost of locking up Americans too high: Pew study, states that Pew made the following findings:

It estimated states spent a record $51.7 billion on corrections in fiscal year 2008 and incarcerating one inmate cost them, on average, $29,000 a year. But the average annual cost of managing an offender through probation was $1,250 and through parole $2,750.

Pew concludes:

With states facing the worst fiscal crisis in a generation and corrections costs consuming one in every 15 state discretionary dollars, the need to find cost-effective ways to protect public safety is more critical than ever.

Research from the Public Safety Performance Project and its partners details strategies—such as strengthening community supervision and reinvesting money currently spent on imprisoning the lowest risk inmates—to cut corrections costs and give taxpayers a better return on public safety.

Not only do we as taxpayers have to pay to guard, house, feed, and provide medical care for inmates; but we also lose their contributions as workers and taxpayers.  Better they should support themselves!

Second, as a practical matter, I am not convinced that rehabilitation is more likely to occur in prison than out of it.  To the extent that people's lives can be turned around, it is unlikely to occur by requiring them to associate with other criminals. 

We cannot afford to imprison every nonviolent criminal, even repeat offenders like this one.  Nor does it make us safer.  As Pew suggests, if we direct funding away from incarceration and towards community supervision, we will not only save money but we will reduce crime.

This chart shows your chances of parole plotted against the time of day, with the circles representing the judges starting up after a break. As you can see, your chances drop dramatically as the judge gets hungrier. This is from an article by Ed Yong describing research by Shai Danziger, who looked at 1,112 parole decisions over a ten-month period in Israel. Get your parole hearing scheduled early!

In the aftermath of Hurricane Katrina, there were reports of widespread looting in New Orleans, and in the debate about the justification for looting, arguments tend to revolve around whether the behavior in question is perceived as exploitive criminality, for which a law enforcement crackdown would be in order, or foraging for necessities in extreme circumstances, for which sympathy would be a more appropriate response. As such judgments can be subjective, mis-categorization can occur.

In the ongoing tsunami/earthquake/nuclear power catastrophe in Japan, commentators have begun to discuss the apparent lack of looting behavior.  Most attribute this to Japanese cultural values and norms. In one discussion thread on the Daily Dish, one reader reported the following:

My Japanese wife has been glued to the TV since Thursday.

All of her extended family is in Tokyo. She called her father and sister, imploring them to stock up on food, sundries, water, batteries, plastic wrap, and duct tape in anticipation of the Fukushima nuclear power plant failing and releasing tons of radiation into the atmosphere.  In addition, the chance of a major aftershock in Tokyo is quite high, so they should be prepared.

Her sister's response: That would be selfish.  If they hoarded, others would go without.

Can you imagine a society in which the general, internalized cultural norm is self-sacrifice for the good of the larger society? I couldn't help being reminded of some of the current political debates in the United States. The fear of mild health care reform leading to socialist rationing seems quaint in comparison.

Yes, I know there are downsides to this kind of non-individualistic behavior. Less incentive for entrepreneurial creativity. Great psychological damage resulting from pressure to conform that can be oppressive. Even a certain political passivity that can make it easier for authoritarian central governments to come to power (see North Korea). As an Asian American, I'm aware of the dangers of mythologizing and essentializing Asian racial differences.

Still…we seem to be at the other extreme here. Left and right accuse each other of being greedy, of not being grateful for what we have, of not being willing to share sacrifice, and both are to some extents right. I fear that in similar circumstances, proud individualistic Americans would not fare as well. The rich would be hoarding and the poor would be looting.

In a larger sense, that's exactly what we are doing already.

The current ABA Journal has an article about Elizabeth Kelley, a Cleveland solo with a weekly radio show on celebrity legal stories. Listen to her take on the legal problems of Mel Gibson, Charlie Sheen, Kelley Williams-Bolar and others here.

Yesterday, Akron Law announced its new clinic program, the Akron Law Criminal Expungement Clinic. Aviva Wilcher, an Akron Law graduate, will direct the program and Professor J. Dean Carro will oversee the program. The Clinic is funded from a $10,000 grant from the City of Akron. Under the direction of Wilcox and Carro, Akron Law students will assist those convicted of nonviolent crimes in having them expunged from their record. Read more about this intiative here, here and here .

TO THE AKRON LAW CAFE
From: Margery Koosed (Margery Koosed is a Professor of Law at University of Akron School of Law) and
Phyllis L. Crocker (Phyllis L. Crocker is Interim Dean and Professor of Law at Cleveland-Marshall Law School, Cleveland State University)

Fairness Costs Money

Anthony Sowell is charged with multiple rape-murders in Cleveland.  The State of Ohio is seeking the death penalty. His defense lawyers have requested funds to conduct an investigation in to their client’s past.  Judge Dick Ambrose has granted some funds and was considering further funding, according to a front-page article in the Cleveland Plain Dealer on Monday, October 11 (“Sowell defense costs near $150,000”).

A day later, PD columnist Phillip Morris urged we were “Spending too much to humanize Sowell”.  He thought all the money at that point given to defense counsel to pay for mitigation investigators was “too much, if you ask me”, and that no more should be granted.  Apparently, columnist Morris would provide nothing to defense counsel to fund an investigation of Sowell’s background because “the only thing that matters here is guilt or innocence”.  Morris contended “We don’t need a portrait of Anthony Sowell.  We need justice for the eleven dead women…”, and in his view, all that matters is guilt.

Phillip Morris was misleading his readers with this somewhat inflammatory rhetoric.  He fundamentally misconstrues the law of this nation and the responsibilities of those sworn to uphold it.

It simply is not true that “the only thing that matters here is guilt or innocence.”  Finding someone guilty does not end a capital case – it continues with another trial known as a penalty phase.  The penalty phase is solely devoted to reliably and dispassionately determining the appropriate sentence, life or death.

Though Mr. Morris wants it otherwise, no state can mandate death as the automatic punishment when guilt is found, in any case.

The Eighth Amendment cruel and unusual punishment provision requires that just such a “portrait” that Mr. Morris so disparages be drawn.  Every person facing capital charges is entitled to an individualized determination of the appropriate punishment, a reliable assessment of whether the penalty should be life or death.  A sentencing jury must consider, and a defense counsel must investigate, the history, character and background of the offender to identify any facts that may call for a life sentence.

Indeed, Ohio law provides that death is just one of five possible punishments for aggravated murder with specifications.  Other options for the sentencing jury are life without parole (increasingly the choice juries make, and even in multiple murder cases), or life with parole eligibility after serving 20, 25, or 30 years of imprisonment.

So the trial that Anthony Sowell and every capitally accused is entitled to will address not only his guilt or innocence of the crime, but in addition if convicted of a capital charge, all the available punishments.

Like the factual investigation needed for a trial on guilt/innocence, the penalty phase requires the collection of all relevant facts, and that requires professional investigators.

Does Mr. Morris expect the prosecutor to seek volunteers from the neighborhood to conduct the forensic investigations needed to prove the state’s charges against Anthony Sowell?  Then he should not assume that defense lawyers, without the police and sheriff and criminal investigative staff who are working for the state, should be able to somehow go it alone in thoroughly investigating the equally relevant question of whether there are facts in records and elsewhere that call for a penalty less than death should their client be convicted.

Our adversarial system relies on approximately equal adversaries to arrive at just and reliable results.  To disable the defense by denying reasonably necessary investigative and expert assistance denies due process and results in overturning of convictions — forcing even more expenditures in order to litigate appeals and eventually conduct a retrial.  Doing it right the first time is what makes the most sense, for fairness and the county fisc.

Judge Dick Ambrose is wisely looking to the American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases in deciding whether to grant defense requests for investigative and expert assistance.

As the Plain Dealer’s Monday article pointed out, the federal constitution requires capitally charged defendants receive effective assistance of counsel and that mitigating evidence calling for a life sentence be considered. Courts consistently refer to the ABA Guidelines to see what reasonably competent counsel under prevailing professional norms do when defending capital clients.  The ABA Guidelines detail the special skills capital defenders must have and the “extraordinary efforts” they must undertake because of the irreversible punishment the state is seeking.

Defense lawyers who fail to carry out responsibilities under those ABA Guidelines can be found ineffective and the death penalty will be reversed.  To avoid costly appeals and retrials, the ABA Guidelines need to be an essential part of a judge’s analysis.

Those ABA Guidelines are part of the standards by which the ABA Ohio Death Penalty Assessment Team, on which we sat, evaluated Ohio’s death penalty litigation system.  The ABA Report “Evaluating Fairness and Accuracy in State Death Penalty Systems: The Ohio Death Penalty Assessment Report”, was released in September 2007.  Our Task Force was made up of former federal and county prosecutors who had sought death sentences (no currently sitting prosecutor accepted the repeated invitation to serve), sitting and former magistrates/judges, defense lawyers and law professors.

The 93 ABA protocols the Assessment Team consulted cover key aspects of death penalty administration essential to fair and accurate decision-making in the trial and penalty phases. Ohio’s compliance with these protocols was dismal — of 93 protocols, Ohio fully complied with only 4.

In response to these findings, the Team called for a temporary suspension of executions and a study to identify needed changes in the system.  It also made its own specific recommendations that, if implemented, would significantly improve the fairness and accuracy of Ohio’s death penalty system.

Instead of suspending executions or conducting a study, Ohio has picked up the pace of executions — executing persons at a rate not seen since the heyday of executions in the 1940’s.  Only Texas will surpass us this year in the number of executions carried out.

If Ohio is serious about executing, then it should be equally serious if not more so about assuring the system is reaching reliable and fair results. To be sure, some improvements have come about that were recommended by the ABA Assessment Team: discovery reforms (thanks again to Pulitzer prize winning columnist Regina Brett for her insightful columns and dogged determination on this issue), and legislation to preserve DNA evidence and improve police investigative practices (with the support of former state Attorney General Jim Petro and the Innocence Project at the University of Cincinnati Law School, headed by Assessment Team member Prof. Mark Godsey). But there are still greatly needed improvements to make.

Misleading statements regarding the capital punishment system — like Mr. Morris’s contention “the only thing that matters is guilt or innocence” – prevent Ohioans from making the informed choices that are ours to make about capital punishment.

Though it was not addressed in the ABA Report, Ohioans need to know that seeking a death sentence will be expensive, and there is no way around that.  These cases are far more expensive than simply seeking and sentencing someone to life imprisonment.

Is the death penalty worth what it costs us? Many have called for a dispassionate and impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces.  This is particularly appropriate at a time when public funds are scarce and governments need to re-evaluate their fiscal priorities.

Indeed, both New Jersey and New Mexico have recently abolished the death penalty, in part because it simply was not worth the expense.

A New Jersey state commission found the death penalty was a more expensive sentence than life in prison and didn't deter murder.  In New Mexico, the legislature’s Fiscal Impact Report found there was only a 4.5% chance any multi-million dollar death penalty prosecution (over the cost of life without parole) would ever end in an execution.  Backers of the New Mexico repeal urged it would free up money that could better be spent on services for crime victims' families and other projects.

In neighboring Pennsylvania, the State Government Management and Cost Study Commission is hearing from experts on proposals to cut the costs of various government programs.  Richard Dieter, Executive Director of the Death Penalty Information Center, testified: "[T]he death penalty is not an essential government function and, in fact, is probably one of the least effective and most costly programs, when measured in terms of the people it affects.” (See also the DPIC's report, "Smart on Crime: Rethinking the Death Penalty in a Time of Economic Crisis.")

The New York Times reported last year that legislators and others in a half dozen states were conducting such cost/benefit analyses of the death penalty.

Why isn’t Ohio among the states rethinking the death penalty?  We surely have the budgetary crisis to warrant it. It is ultimately our decision what we as Ohioans want to spend our limited funds on.

We can continue funding an expensive broken capital punishment system, or we can just do what most penalty phase juries are doing anyway – choose life.  We can decide to consider taking death off the books in Ohio, and in the interim, save funds and consider taking death ‘off the table’ in the Sowell case.

It is our decision to make. We do agree with Phillip Morris on one thing – we would much rather have the money go to those who teach our young, or to making needed infrastructure repairs, than to continuing to fund a broken and unnecessary system.

The Innocence Project recently released a report, 250 Exonerated: Too Many Wrongfully Convicted, which details 250 exoneration cases and includes statistics on common causes of the wrongful convictions.   The organization has only been around since 1992 but has help free 250 individuals who have all been wrongfully convicted but later declared innocent by the courts.  There are 8 people from Ohio that were wrongly convicted but later exonerated with the help of this organization. 

The report’s key findings:

• There have been DNA exonerations in 33 states and the District of Columbia.

• The top three states for DNA exonerations are New York (with 25), Texas (with 40) and Illinois (with 29).

• 76% of the wrongful convictions involved eyewitness misidentification.

• 50% involved invalidated or improper forensic science.

• 27% relied on a false confession, admission or guilty plea.

• 70% of the 250 people exonerated are people of color (60% are black; nearly 9% are Latino; 29% are white).

Browse the Profiles of those Freed

Browse or search by name, state or year.  If using the browse function, you can sort by name or state just by clicking the column heading.   There are 8 people from Ohio that were wrongly convicted but later exonerated with the help of this organization.  All 8 were later freed using DNA testing on evidence originally collected by the police.  Using this same DNA results, the police were able to find 6 of the real perpetrators.   Read their personal stories by clicking on their name. 

Donte Brooker , exonerated 2005

Danny Brown, exonerated 2001

Clarence Elkins, exonerated 2005

Joseph Fears Jr., exonerated 2009

Anthony Michael Green, exonerated 2001

Robert McClendon, exonerated 2008

Brian Piszczek, exonerated 1994

Walter Smith, exonerated 1996

 Background about the Organization

The Innocence Project was established in 1992 at the Benjamin N. Cardozo School of Law in New York City.  The Innocence Project is a national litigation and public policy organization dedicated to exonerating wrongfully convicted people through DNA testing and reforming the criminal justice system to prevent future injustice.

More here.

     Attorney General Eric Holder has decided to try five prisoners in the war on terror, including Khalid Sheikh Mohammed, on criminal charges in New York for the attacks of September 11.  They will face the death penalty.

    Yesterday Attorney General Eric Holder released a statement in which he said:

For the past several months, prosecutors at the Department of Justice have been working diligently with prosecutors from the Pentagon’s Office of Military Commissions to review the case of each detainee at Guantanamo who has been referred for prosecution. Over the past few weeks, I have personally reviewed these cases, and in consultation with the Secretary of Defense, have made determinations about the prosecution of ten detainees now held at Guantanamo, including those charged in the 9/11 plot and the alleged mastermind of the Cole bombing.

Today, I am announcing that the Department of Justice will pursue prosecution in federal court of the five individuals accused of conspiring to commit the 9/11 attacks. Further, I have decided to refer back to the Department of Defense five defendants to face military commission trials, including the detainee who was previously charged in the USS Cole bombing.

The 9/11 cases that will be pursued in federal court have been jointly assigned to prosecutors from the Southern District of New York and the Eastern District of Virginia and will be brought in Manhattan in the Southern District of New York. After eight years of delay, those allegedly responsible for the attacks of September the 11th will finally face justice. They will be brought to New York to answer for their alleged crimes in a courthouse just blocks from where the twin towers once stood.

     In this report CNN quotes Senator John Cornyn (R-TX) as opposing the trials in New York because it "needlessly compromises the safety of all Americans," and Representative Lamar Smith (R-TX) as stating that trials in criminal court because it would "prioritize the rights of terrorists over the rights of Americans to be safe and secure."  The report also quotes Kristen Breitweiser, whose husband was killed in the attack, as supporting the administration's decision because "it would give many of us access to attend the hearings … this will be our opportunity to see justice served and have our day in court."  Josh Gerstein at The Politico reports that many other families of victims of the attack are opposed to the trial, and would rather see the plotters tried in military court.  House Minority Leader John Boehner (R-OH) issued a statement in which he said:

The Obama Administration’s irresponsible decision to prosecute the mastermind of the 9/11 attacks in New York City puts the interests of liberal special interest groups before the safety and security of the American people. The possibility that Khalid Sheik Mohammed and his co-conspirators could be found ‘not guilty’ due to some legal technicality just blocks from Ground Zero should give every American pause.

     In my opinion, the Attorney General made the correct decision.  Even if acquitted, the defendants would not be released from custody.  They are admittedly supporters of al-Qaeda who have waged war against us, and regardless of the outcome of any military or civilian trial we may continue to detain them as prisoners of war for the duration of this conflict – which may be a very long time.

     But there is a more fundamental reason to try these persons in America, in New York, in federal court.  Trial in civilian court will demonstrate to the rest of world that even in the face of a massive attack we have faith in our legal institutions and constitutional processes.   As an attorney, I am proud of the criminal justice system, and I have confidence that our prosecutors, judges, and juries will determine the truth and mete out appropriate punishment.  As an American citizen, I am proud that we have the courage to try these men as criminals – that we say to terrorists around the world – WE ARE NOT AFRAID!

A couple of weeks ago I blogged about the pending criminal trial of former Bear Stearns executives Ralph Cioffi and Matthew Tannin on charges they defrauded investors in connection with the failure of their hedge funds.  While I did not agree with those who characterized the case as one of "spin versus fraud", I did believe the prosecution would have a hard time proving criminal intent.  Apparently, the jury concurred because Cioffi and Tannin were acquitted this past Tuesday by a "jury of mostly working class Americans."  Now, the question becomes how much steam the government has left to pursue criminal convictions against other executives tied to the financial crisis–like some of those at AIG and Lehman.  Sorting that out will involve determining how much of what went wrong for the prosecution in this case is limited to its particular facts.  Here's a short list of possible explanations for why the jury sided with the defense:

• The jury was confused by the complexity of the case.  As the Wall Street Journal put it:

Throughout the case, the jury was bombarded with mortgage-related lingo — "collateralized debt obligations," "credit models" and the like — in an attempt to explain how two Bear Stearns funds run by the defendants imploded.

• To the extent the jury's confusion was alleviated, it was likely in favor of the defendants because of

the expert testimony of R. Glenn Hubbard . . . the dean of Columbia University’s business school, who said he reviewed data about the funds from the relevant period and said the men could reasonably expect to return to profitability, and that it was reasonable for them to ask investors for more money. . . . Hubbard, who is a former economic advisor to President George W. Bush and whose research for the Bear trial came with a $100,000 price tag declined to comment to the blog.

• The jury was not permitted to hear about a particularly incriminating email:

Today, Judge Frederic Block of Brooklyn, who was considered to be a great draw for the defendants, ruled that prosecutors could not introduce as evidence an email written by one of the defendants, in yet another apparent setback for the government’s case. In the email, Tannin wrote that hedge funds he helped run could “blow up.” Months later they did.

Personally, I think the government will continue to pursue criminal convictions where appropriate.  A spokesman for the government had this to say following the acquittal:

Honesty and integrity are the principles upon which our financial markets function. Enforcing and protecting those principals will continue to be one of the principle efforts of this office.

By the way, if you want a good read that will help you make up your own mind I can recommend "House of Cards" (the audio version is highly entertaining).

But this time it's not because of a technicality. A Pennsylvania judge has been sending children to jail on first-time misdemeanor offenses in order to provide financial support to the for-profit prison company that paid him millions under the table. Can you imagine losing two years of your childhood at the age of twelve for taking your mom's car on a joyride that injured nobody? It's a real crime.

On Thursday, Oct. 1, 2009 The Akron Bar Association and The University of Akron School of Law presents The ABA Ohio Death Penalty Report:  Innocence and E-Discovery.  Seventeen years after Robert McClendon was sentenced to life in prison for alleged rape, a joint investigation by the Ohio Innocence Project and the Columbus Dispatch led to DNA testing that proved his innocence and exonerated him of the crime.  He was released from prison in August 2008.  Topics of discussion will include:

12:30 p.m.      REGISTRATION

1:00 p.m.        THE ABA REPORT ON THE OHIO DEATH PENALTY 
                              Phyllis Crocker, Assoc. Dean & Chair of the Ohio Assessment Team,
                              Cleveland-Marshall Law School
                              Prof. Marge Koosed, University of Akron School of Law  

2:00 p.m.        INNOCENCE PROTECTION IN OHIO
                               Prof. Mark Godsey, Director of the Ohio Innocence Project,
                               University of Cincinnati College of Law
                              James Petro, former Ohio Attorney General
                              Robert McClendon, DNA exoneree

 3:00 p.m.        BREAK

3:15 p.m.          DISCOVERY IN CRIMINAL AND CIVIL CASES
                               Cuyahoga County and Statewide Criminal Discovery Reform
                               Ian N. Friedman, President of the Ohio Association of Criminal Defense Lawyers
                               E-Discovery Practice in Civil Cases and Federal Rule Update
                               Prof. Bernadette Genetin, University of Akron School of Law  

4:15 p.m.        ADJOURNMENT

3.0 CLE credits are being offered.  The seminar fee if paid by 9/24 for ABA Members is $105, Non-Member $130, and New Lawyer (CLE Exempt), Non-lawyer, Paralegal is $75.  If paid after 9/24 the seminar fee for ABA Members is $130, Non-Member $155, and New Lawyer (CLE Exempt), Non-lawyer, Paralegal is $100.  This seminar is free for students and faculty.

Sometimes I am amazed at what I find when helping patrons.  Here is one of those “gems of information.”

Innocent victims of violent crime can apply online on the Attorney General’s web site for compensation of up to $50,000 in expenses.  There are strict guidelines of course.

First, the crime must be reported to law enforcement within 72 hours of the crime and you must file your application for funds with the Attorney General within two years of the date of the crime.  Here is some more information you should know.

Who is eligible:

●  Those injured during a violent crime
●  Dependents of people killed in a crime
●  Anyone responsible for a crime victim’s finances

What is covered:

●  Medical expenses
●  Counseling
●  Lost wages due to the crime or court proceedings
●  Crime scene cleanup
●  Cost to replace items taken as evidence
●  Funeral and burial expenses
●  Financial support for dependents of deceased victim

 
What is not covered:

●  Stolen, damaged or lost property
●  Pain and suffering
●  Expenses that are covered by other sources, such as insurance
●  Anyone who engaged in misconduct that caused or contributed to the injuries

~~~~~~~~~~~~~~~~~~~~~

Is there any victim services nearby?  There are local victim services agencies that can assist you.  For county Victims Services agencies nearby search here by county.

Where is the form?  More information plus online form here.

Attorney fees?  Attorneys who represent a victim for reparations collect their fees from the state Attorney General, not the victim!  (R.C. 2743.71(B)(3) ).  Here is the form the attorney uses.

What other victim services are offered by the Attorney General?  More about victim services, including victim notification of the criminal case and custody status of offender, here.    

Already filed with the Attorney General?  After you file your claim, you can track the status of it online here.

Not happy with your results with the Ohio Attorney General?
Appeal the decision to the Court of Claims of Ohio  and for more detailed information about Ohio’s victims of crime procedures visit the Court of Claims site.    

For more general information about the functions of the Ohio Attorney General office and other services provided, follow the links.

Sometimes when I am helping library users, they ask for a “simple” description of what happens in a trial.  Cases can get complicated very quickly and  if you are litigating your own case, you need to know what the next step is to prepare your case properly.  Today I am providing links to websites that describe the stages of a typical civil and criminal trial.  Some of the sites are from other state courts but are general enough that they still apply for Ohio.

Civil Trials

What happens in a pre-trial conference? 
What is discovery? 
What is the difference between a motion and a pleading? 

To answer these questions take a look at these sites:

Steps in a Trial, by the American Bar Association, organizes links in the same order you would come across them in a case.  Click the links to get a description of the step.  More information here.

The Anatomy of a Trial describes the process in paragraph format, but still keeps it brief.  Look here  and here .

Criminal Trials

What happens during initial appearance? 
How do you present evidence? 
What is a rebuttal?

The American Bar Association (ABA)  and Findlaw.com (site owned by Thompson Reuters)   describe the steps in a criminal case.  Also, the ABA has a Criminal Case diagram.

Audio and Video Ohio Court Case Tours

For strictly an Ohio focus, try the Ohio Case Tours on the Ohio Legal Services site.  The purpose of the Court Case Tours is “to help the residents of Ohio learn more about their local courts, these audio and video files provide a quick and simple explanation of what local courts do.” The trial steps are broken down into one minute video and audio segments starting with pre-trial proceedings through verdicts at the end of a trial.  Courts covered are civil, criminal, and various court divisions like domestic relations, probate, mayor’s court, traffic court, etc. 

Need a more detailed description of the various Ohio Courts?

The Ohio Supreme Court has a nice description here  and a chart of the judicial structure .  

What is the difference between the Federal Court System and the State Court System?

A general overview of the Federal Courts and a brief explanation of Article III courts and Article I courts can be found here.

A great side-by-side comparison chart that looks at structure, types of cases heard and how judges are selected is found here.  

Next week:

So you want to sue the government?  There’s a court for that!

     Get ready for new methods of computing time periods in federal court litigation.  On March 26, 2009, the U.S. Supreme Court  approved proposed amendments to the Federal Rules of Appellate Procedure, Bankruptcy Procedure, Civil Procedure, and Criminal Procedure that will change many time periods set out in these rules and will also change the methods of computing time under these rules.  The rules will take effect on December 1, 2009, absent congressional action to reject, modify, or defer the amendments.   

     The Federal Rules' comprehensive time-computation project was undertaken in response to frequent complaints regarding the time and anxiety and the risk of error inherent in current time computation methods.  Billed as "minor" changes, most proposed rules will further the following principles (1) a "days are days" approach to counting time periods, which will eliminate the current method of omitting intermediate holidays and weekends when the time period is short; (2) a lengthening of shorter time periods to compensate for the new "days are days" approach; and (3) a preference for providing time periods that are less than 30 days in multiples of 7 so that deadlines will less frequently fall on weekends.

     In other time-computation changes, the proposed amendments to the civil rules will clarify how to count forward when a time period is measured after an event and a deadline falls on a weekend or holiday (e.g., 14 days after receipt of a motion); how to count backward when a time period is measured before an event and the deadline falls on a weekend or holiday (e.g., at least 21 days before a scheduling conference is to be held); and how to compute hourly time periods.  The proposed civil rules will also create filing deadlines for electronic filings:  Generally, unless a statute or rule provides otherwise, the last day of a time period for an electronic filing will end at midnight in the court's time zone.  Explanations of the new rules and the proposed language can be found here.

    Additionally, Congress passed H.R. 1626, which amends 28 statutory deadlines to conform with the proposed time-computation amendments to various Federal Rules,  and President Obama signed H.R. 1626 on May 7, 2009.  The statutory changes, like the proposed amendments to the Federal Appellate, Bankruptcy, Civil, and Criminal Procedural Rules, have an effective date of December 1, 2009.  The Act and the amended statutes can be viewed here. 

     At first glance, these rules appear to be no more than mere counting changes.  But take a closer look.  Each set of amended rules — appellate procedure, bankruptcy procedure, civil procedure, and criminal procedure — include rules of more substance.

     In addition to the relatively "minor" time-computation changes, for example, some of the proposed new Federal Rules would have greater impact as follows:

• Proposed Fed. R. Civ. P. 62.1 and Fed. R. App. P. 12.1 – Proposed Civil Rule 62.1 would provide a consistent procedure for obtaining an "indicative ruling" from a district court judge when a case is on appeal.  When a case is appealed from a district court, the district court loses jurisdiction to consider issues involving the case, but a practice has arisen in most circuits that permits district courts to make an "indicative ruling," i.e., to indicate the ruling it would make if it retained jurisdiction.  Proposed Civil Rule 62.1 will provide a uniform procedure for the federal courts that will permit the district court to defer ruling, deny the motion, or indicate either that the motion raises a substantial issue or that it would be inclined to grant the motion if the case were remanded.  Requests for indicative rulings are typically prompted by Rule 60(b) motions for relief from order or judgment that are filed after an appeal has been granted.  Proposed Fed. R. App. P. 12.1 is consistent with Civil Rule 62.1 and facilitates remand to the district court when the district court indicates that it would grant the motion if the appellate court remands for that purpose or indicates that the motion raises a substantial issue.
• Proposed Amendment to Fed. R. Civ. P. 15(a) — Changes the time period for amending, as of course, a pleading to which a responsive pleading is required.
• Proposed Amendment to Fed. R. Civ. P. 48 — Permits a court to poll the jury individually and requires the court to do so on request of a party.
• Proposed Amendment to Fed. R. Civ. P. 50, 52, 59(b), (d), (e) – Changes current 10-day time periods to 28-day time periods for the following:
  • motions for judgment notwithstanding the verdict (renewed motion for judgment as a matter of law) under Rule 50(b),
  • motions to amend a judge's findings of fact following the entry of judgment in a bench trial under Rule 52;
  • motions for a new trial or to amend or alter a judgment in a jury trial, under Rule 59.

• Proposed Amendment to Fed. R. Crim. P. 41 — Proposed Criminal Rule 41 is amended to provide clarification on how warrant procedures apply to seizure of electronically stored information (ESI).  Rule 41 adopts a "two-stage" procedure.  It authorizes (1) a first-stage seizure of the electronic storage media or seizure and copying of ESI; and (2) a second-stage review of the medium or ESI for information consistent with the scope of the warrant, at an offsite location.  

Criminal law is not my area, but the Supreme Court on Monday agreed to hear two cases. In one, "a minor was given a life prison sentence for a crime in which the victim was not killed.  The Court became aware last October that a case on that issue was on its way — the case of Joe Harris Sullivan, who was given life without parole in Florida after a conviction for sexual battery, a crime committed when he was 13 years old.  Before that case was actually filed, however, the case of Terrance Jamar Graham arrived; he was given life without parole in Florida after violating his probation after an earlier guilty plea for armed burglary; he was 17 at the time of the life sentence." The SCOTUS blog has the full rundown.

The Court has already ruled that the death penalty imposed on minors is unconstitutional. Now the question is whether we can constitutionally impose a sentence of life without parole on minors–in two cases that don't involve the loss of life of a victim. What do you think?

The Castle Doctrine is a hot topic this week due to a recent story in the Beacon Journal and library patrons are calling our Reference Desk asking about Ohio's version of this law. 

The new version of the Castle Doctrine was signed into law last June as Senate Bill 184 and went into effect on September 9, 2008.  As Governor Strickland signed the bill, he stated: "This legislation offers needed clarifications to Ohio's concealed carry law and strengthens legal protections for citizens who defend themselves and their families against intruders in their homes." 

The law also includes defending yourself in your vehicle.   Here are some of the major sections in the Ohio Revised Code with the new wording:

R.C. 2901.05 Burden of Proof and Self-defense (rebuttable presumption)

R.C. 2901.09 No duty to retreat in residence or vehicle

R.C. 2307.601 No duty to retreat in residence or vehicle   

R.C 2923.12 Carrying concealed weapons (long)

Since the law changed many sections of the Ohio Revised Code, it may be easier to read the final version of the bill here.

The general description of the new Castle Doctrine:

Under certain changes enacted in 2008, a person does not have a duty to retreat from the residence that they lawfully occupy before using force in self-defense or defense of another. Additionally, there is no duty to retreat if the person is lawfully in that person’s vehicle or lawfully is an occupant in a vehicle owned by an immediate family member of that person. However, being a lawful occupant of a residence or vehicle is not a license to use deadly force against an attacker. The person who is attacked, without fault of his own, may use deadly force only if he reasonably and honestly believed that deadly force was necessary to prevent serious bodily harm or death. If the person does not have this belief, he should not use deadly force. Again, if it does not put your life or the life of others in danger, you should withdraw from the confrontation if it is safe for you to do so.

 The law presumes you to have acted in self-defense or defense of another when using deadly force if the victim had unlawfully and without privilege entered or was in the process of entering the residence or vehicle you occupy. The presumption does not apply if the defendant was unlawfully in that residence or vehicle. The presumption does not apply if the victim had a right to be in, or was a lawful resident, of the residence or vehicle.

The presumption of self-defense is a rebuttable presumption. The term “rebuttable presumption” means the prosecutor, and not the defendant, carries the burden of producing evidence contrary to the facts that the law presumes. However, a rebuttable presumption does not relieve the defendant of the burden of proof. If the prosecutor provides sufficient evidence to prove that the defendant created the confrontation or that the use of deadly force was not reasonably necessary to prevent death or great bodily harm then the presumption of self-defense no longer exists.

Source: Ohio’s Concealed Handgun Law with the up-to-date Castle Doctrine, page 22 (36 pages long) .  The elements of self-defense begin on page 20.  This document was published in 2009 by the Ohio Attorney General and includes the new law.

For more information on Ohio’s Concealed Handgun law, visit the Ohio Attorney General page on the subject. 

 Next week, we will learn where to look for federal regulations.